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01/30/89 In Re Estate of John H. Wiese

January 30, 1989

IN RE ESTATE OF JOHN H. WIESE, DECEASED (GLEN WIESE ET AL.,


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Petitioners-Appellees, v.

Laurie Wiese, Adm'r, Respondent-Appellant)

533 N.E.2d 1183, 178 Ill. App. 3d 938, 128 Ill. Dec. 95 1989.IL.91

Appeal from the Circuit Court of La Salle County; the Hon. Louis J. Perona, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. STOUDER, P.J., and HEIPLE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Laurie Wiese, the administrator of the estate of John H. Wiese, deceased, appeals from an order of the circuit court of La Salle County dividing the proceeds of a wrongful death settlement between herself as surviving spouse and the four adult children of the decedent.

Decedent was divorced by his first wife, Mary Lou Wiese, in 1961, and she was awarded custody of the couple's four children. Decedent married Laurie Wiese in 1974. In 1979 decedent was killed in Cook County, Illinois, when a load of plastic piping on his flatbed truck shifted and fell on him as he was working on or near the truck.

Decedent died without a will, and Laurie Wiese was appointed administrator of his estate. The only asset in the estate was a wrongful death cause of action filed in Cook County which was settled in 1986 for $520,000. Following the settlement agreement, the circuit court of Cook County entered an order directing that $162,589.72 of the proceeds be paid to the administrator's attorneys and that $40,000 be paid to satisfy the workers' compensation lien. The remaining $317,410.28 was directed to be distributed by the administrator upon a "finding of dependence."

The four adult children of decedent then filed a petition in the probate proceeding in La Salle County requesting distribution of the settlement in proportion to the dependency among them and the surviving spouse. The evidence at trial indicated that decedent had maintained contact with each of his children throughout their lives, that he had often visited with them at his first wife's home after the divorce, that each of the adult children spent time with decedent on at least a weekly basis, that each child had lived with decedent for a few months at one time or another, and that decedent and his sons did a number of activities together, such as target shooting, working on trucks, helping on home improvement projects, and other social contacts.

Decedent rarely gave his children financial help, other than an occasional gift, and his income was much less than that of his wife (Laurie) during the last year of his life. Laurie Wiese presented no evidence of dependence, but rather chose to rely upon a presumption of the dependency of the surviving spouse. The trial court awarded 56% of the settlement proceeds to Laurie Wiese, 12% to each of the sons, and 10% to each daughter.

On appeal Laurie Wiese contends that the trial court erred in finding the adult children of decedent to have been dependent upon their father without any showing of financial dependence.

The Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 2) provides for a damage award that is "a fair and just compensation with reference to the pecuniary injuries resulting from such death." The statute also provides, in the case of an agreed settlement, the court is to apportion the settlement according to "the ...


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